Data processing and Security terms

Origiflow Data processing and security terms

Data processing and security

This DPA is supplemental to, and forms an integral part of, the Agreement and is effective upon its incorporation into the Agreement, which may be specified in the Agreement or an executed amendment to the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.

When Processing Personal Data in accordance with this DPA, the parties acknowledge and agree that you are the Controller of Personal Data and we are the Processor.

1. Definitions

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question under the Agreement, including without limitation European Data Protection Laws; in each case as amended, repealed, consolidated or replaced from time to time.

“Data Subject” means the individual to whom Personal Data relates.

"Europe" means the European Union, the European Economic Area and/or their member states.

"European Data Protection Laws" means data protection laws applicable in Europe, including: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) ("GDPR

“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).

"Permitted Affiliates" means any of your Affiliates that (i) are permitted to use the Services pursuant to the Agreement, but have not signed their own separate agreement with us and are not a “Customer” as defined under the Agreement, (ii) qualify as a Controller of Personal Data Processed by us, and (iii) are subject to European Data Protection Laws.

“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data, personal information or personally identifiable information under applicable Data Protection Laws.

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by us and/or our Sub-Processors in connection with the provision of the Services. "Personal Data Breach" will not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.

“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.

“Standard Contractual Clauses” means the standard contractual clauses for Processors annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021, in the form set out at Annex 4; as may be amended, superseded or replaced.

“Sub-Processor” means any Processor engaged by us or our Affiliates to assist in fulfilling our obligations with respect to the provision of the Services under the Agreement. Sub-Processors may include third parties or our Affiliates but will exclude any Company employee or consultant.

2. Customer Responsibilities

a. Compliance with Laws. Within the scope of the Agreement and in its use of the services, you will be responsible for complying with all requirements that apply to it under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions it issues to us.

In particular but without prejudice to the generality of the foregoing, you acknowledge and agree that you will be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which you acquired Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by Customer for marketing purposes); (iii) ensuring you have the right to transfer, or provide access to, the Personal Data to us for Processing in accordance with the terms of the Agreement (including this DPA); and (iv) ensuring that your Instructions to us regarding the Processing of Personal Data comply with applicable laws, including Data Protection LawsYou will inform us without undue delay if you are not able to comply with your responsibilities under this 'Compliance with Laws' section or applicable Data Protection Laws.

b. Controller Instructions. The parties agree that the Agreement (including this DPA), together with your use of the Service in accordance with the Agreement, constitute your complete Instructions to us in relation to the Processing of Personal Data, so long as you may provide additional instructions during the subscription term that are consistent with the Agreement, the nature and lawful use of the Service.

c. Security. You are responsible for independently determining whether the data security provided for in the Service adequately meets your obligations under applicable Data Protection Laws. You are also responsible for your secure use of the Service, including protecting the security of Personal Data in transit to and from the Service (including to securely backup or encrypt any such Personal Data).

3. Company obligations

a. Compliance with Instructions. We will only Process Personal Data for the purposes described in this DPA or as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law.

b. Conflict of Laws. If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issue new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you under the Agreement for any failure to perform the applicable Services until such time as you issue new lawful Instructions with regard to the Processing.

c. Security. We will implement and maintain appropriate technical and organizational measures according to article 32 GDPR to protect Personal Data from Personal Data Breaches, as described under Annex 2 to this DPA ("Security Measures"). Notwithstanding any provision to the contrary, we may modify or update the Security Measures at our discretion provided that such modification or update does not result in a material degradation in the protection offered by the Security Measures.

d. Confidentiality. We will ensure that any personnel whom we authorize to Process Personal Data on our behalf is subject to appropriate confidentiality obligations (whether a contractual or statutory duty) with respect to that Personal Data.

e. Personal Data Breaches. We will notify you without undue delay after we become aware of any Personal Data Breach and will provide timely information relating to the Personal Data Breach as it becomes known or reasonably requested by you. At your request, we will promptly provide you with such reasonable assistance as necessary to enable you to notify relevant Personal Data Breaches to competent authorities and/or affected Data Subjects, if you are required to do so under Data Protection Laws.

f. Deletion or Return of Personal Data. We will delete or return all Customer Data, including Personal Data (including copies thereof) Processed pursuant to this DPA, on termination or expiration of your Service. This term shall apply except where we are required by applicable law to retain some or all of the Customer Data.

g. Demonstration of Compliance. We will make all information reasonably necessary to demonstrate compliance with this DPA available to you and allow for and contribute to audits, including inspections conducted by or your auditor in order to assess compliance with this DPA. You acknowledge and agree that you will exercise your audit rights under this DPA and Clause 8.9 of the Standard Contractual Clauses by instructing us to comply with the audit measures described in this 'Demonstration of Compliance' section. You acknowledge that the Service is hosted by our data center partners who maintain independently validated security programs (including SOC 2 and ISO 27001) Further, at your written request, we will provide written responses (on a confidential basis) to all reasonable requests for information made by you necessary to confirm our compliance with this DPA, provided that you will not exercise this right more than once per calendar year unless you have reasonable grounds to suspect non-compliance with the DPA.

4. Data Subject Requests

To the extent that you are unable to independently address a Data Subject Request through the Service, then upon your written request we will provide reasonable assistance to you to respond to any Data Subject Requests or requests from data protection authorities relating to the Processing of Personal Data under the Agreement.

If a Data Subject Request or other communication regarding the Processing of Personal Data under the Agreement is made directly to us, we will promptly inform you and will advise the Data Subject to submit their request to you. You will be solely responsible for responding substantively to any such Data Subject Requests or communications involving Personal Data.

5. Sub-Processors

You agree that we may engage Sub-Processors to Process Personal Data on your behalf. We have currently appointed, as Sub-Processors, the Company Affiliates and third parties listed in Annex 3 to this DPA. We will notify you if we add or replace any Sub-Processors listed in Annex 3 at least 60 days prior to any such changes.

Where we engage Sub-Processors, we will enter into data protection agreements with the Sub-Processors that provide at least the same level of protection for Personal Data as those in this DPA (including, where appropriate, the Standard Contractual Clauses), to the extent applicable to the nature of the services provided by such Sub-Processors. We will remain responsible for each Sub-Processor’s compliance with the obligations of this DPA and for any acts or omissions of such Sub-Processor that cause us to breach any of its obligations under this DPA.

6. Data Transfers

You acknowledge and agree that we may access and Process Personal Data within the European Union as necessary to provide the Service in accordance with the Agreement.

7. General Provisions

a. Severability. If any individual provisions of this DPA are determined to be invalid or unenforceable, the validity and enforceability of the other provisions of this DPA will not be affected.

b. Limitation of Liability. Each party and each of their Affiliates' liability, taken in aggregate, arising out of or related to this DPA (and any other DPAs between the parties) and the Standard Contractual Clauses (where applicable), whether in contract, tort or under any other theory of liability, will be subject to the limitations and exclusions of liability set out in the 'Limitation of Liability' section of the Agreement and any reference in such section to the liability of a party means aggregate liability of that party and all of its Affiliates under the Agreement (including this DPA). In no event shall either party's liability be limited with respect to any individual's data protection rights under this DPA (including the Standard Contractual Clauses) or otherwise.

c. Governing Law. This DPA will be governed by and construed in accordance with the laws of Sweden.

Annex 1: Details of Processing

A. List of Parties

Data exporter:

Name: Customer

Address: As specified in the Agreement.

Contact person’s name, position and contact details: Contact details for the data exporter are specified in the Agreement.

Activities relevant to the data transferred under these Clauses: The data importer provides the Services to the data exporter in accordance with the Agreement.

Signature and date: The parties agree that execution of the Agreement and certification by the data exporter pursuant to Section 10.4 of the Data Processing and Security Terms or Data Processing Amendment (as applicable) shall constitute execution of these Clauses by both parties.

Role (controller/processor): controller

Data importer:

Name: Panamond

Address: As specified in the Agreement.

Contact person’s name, position and contact details: Contact details for the data exporter are specified in the Agreement.

Activities relevant to the data transferred under these Clauses: The data importer provides the Services to the data exporter in accordance with the Agreement.

Signature and date: The parties agree that execution of the Agreement and certification by the data exporter pursuant to Section 10.4 of the Data Processing and Security Terms or Data Processing Amendment (as applicable) shall constitute execution of these Clauses by both parties.

Role (controller/processor): controller

B. Description of Transfer

Panamond's provision of the Services to the Customer

Categories of Data Subjects whose Personal Data is Transferred

Your Customers and other end users including your employees, customers, and subcontractors.

Categories of Personal Data Transferred

a. Contact and Individual Information such as birth date, social security number, address, email address, phone number

b. Credit information, such as existing debt with credit institutions, payment remarks, bank account transactions, income details, and other credit information

c. Any other Personal Data submitted by, sent to, or received by you, or your end users, via the Subscription Service.

Sensitive Data transferred and applied restrictions or safeguards

The parties do not anticipate the transfer of sensitive data.

Frequency of the transfer

Continuous

Nature of the Processing

1. Storage and other Processing necessary to provide, maintain and improve the Subscription Services provided to you (data collection, processing, deletion, transfer); and/or

2. Disclosure in accordance with the Agreement (including this DPA) and/or as compelled by applicable laws.

Purpose of the transfer and further processing

We will Process Personal Data as necessary to provide the Subscription Services pursuant to the Agreement, as further specified in the Order Form, and as further instructed by you in you.

Period for which Personal Data will be retained

Subject to the 'Deletion or Return of Personal Data' section of this DPA, we will Process Personal Data for the duration of the Agreement, unless otherwise agreed in writing.

C. Competent Supervisory Authority

For the purposes of the Standard Contractual Clauses, the supervisory authority that shall act as competent supervisory authority is where Customer is established in an EU Member State, the supervisory authority responsible for ensuring Customer's compliance with the GDPR;

Annex 2 – Security Measures

This Annex forms part of the DPA.

We currently observe the Security Measures described in this Annex 2. All capitalized terms not otherwise defined herein shall have the meanings as set forth in the DPA.

a) Access Control

i) Preventing Unauthorized Product Access

Outsourced processing: We host our Service with outsourced cloud infrastructure providers. Additionally, we maintain contractual relationships with vendors in order to provide the Service in accordance with our DPA. We rely on contractual agreements, privacy policies, and vendor compliance programs in order to protect data processed or stored by these vendors.

Physical and environmental security: We host our product infrastructure with multi-tenant, outsourced infrastructure providers. The physical and environmental security controls are audited for SOC 2 Type II and ISO 27001 compliance, among other certifications.

Authentication: We implement a uniform password policy for our customer products. Customers who interact with the products via the user interface must authenticate before accessing non-public customer data.

Authorization: Customer Data is stored in multi-tenant storage systems accessible to Customers via only application user interfaces and application programming interfaces. Customers are not allowed direct access to the underlying application infrastructure. The authorization model in each of our products is designed to ensure that only the appropriately assigned individuals can access relevant features, views, and customization options. Authorization to data sets is performed through validating the user’s permissions against the attributes associated with each data set.

Application Programming Interface (API) access: Public product APIs may be accessed using an API key or through Oauth authorization.

ii) Preventing Unauthorized Product Use

We implement industry standard access controls and detection capabilities for the internal networks that support its products.

Static code analysis: Security reviews of code stored in our source code repositories is performed, checking for coding best practices and identifiable software flaws.

iii) Limitations of Privilege & Authorization Requirements

Product access: A subset of our employees have access to the products and to customer data via controlled interfaces. The intent of providing access to a subset of employees is to provide effective customer support, to troubleshoot potential problems, to detect and respond to security incidents and implement data security. Access is enabled through “just in time” requests for access; all such requests are logged. Employees are granted access by role, and reviews of high risk privilege grants are initiated daily. Employee roles are reviewed at least once every six months.

b) Transmission Control

In-transit: We make HTTPS encryption (also referred to as SSL or TLS) available on every one of its login interfaces and for free on every customer site hosted on the Panamond products. Our HTTPS implementation uses industry standard algorithms and certificates.

At-rest: We store user passwords following policies that follow industry standard practices for security. We have implemented technologies to ensure that stored data is encrypted at rest.

c) Input Control

Detection: We designed our infrastructure to log extensive information about the system behavior, traffic received, system authentication, and other application requests. Internal systems aggregated log data and alert appropriate employees of malicious, unintended, or anomalous activities. Our personnel, including security, operations, and support personnel, are responsive to known incidents.

Response and tracking: We maintain a record of known security incidents that includes description, dates and times of relevant activities, and incident disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any confirmed incidents, we will take appropriate steps to minimize product and Customer damage or unauthorized disclosure. Notification to you will be in accordance with the terms of the Agreement.

d) Availability Control

Infrastructure availability: The infrastructure providers use commercially reasonable efforts to ensure a minimum of 99.95% uptime. The providers maintain a minimum of N+1 redundancy to power, network, and HVAC services.

Fault tolerance: Backup and replication strategies are designed to ensure redundancy and fail-over protections during a significant processing failure. Customer data is backed up to multiple durable data stores and replicated across multiple availability zones within the European Union.

Online replicas and backups: Where feasible, production databases are designed to replicate data between no less than 1 primary and 1 secondary database. All databases are backed up and maintained using at least industry standard methods.

Our products are designed to ensure redundancy and seamless failover. The server instances that support the products are also architected with a goal to prevent single points of failure. This design assists our operations in maintaining and updating the product applications and backend while limiting downtime.

Annex 3 – List of Sub-Processors

Third Party Sub-Processor Purpose Applicable Service Data Center Sub-Processor Location
Google, Inc.Hosting and Infrastructure Used as an on-demand cloud computing platforms and APIsBelgium, Finland

Annex 4 – Standard Contractual Clauses

STANDARD CONTRACTUAL CLAUSES

SECTION I

Clause 1

Purpose and scope

(a) The purpose of these standard contractual clauses is toensure compliance with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council Of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (1) for the transfer of personal data to a third country.

(b) The Parties:

(i) the natural or legal person(s),public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and

(ii) the entity/ies in a thirdcountry receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I. A (hereinafter each ‘data importer’)

have agreed to these standardcontractual clauses (hereinafter: ‘Clauses’).

(c) These Clauses apply with respect to the transfer ofpersonal data as specified in Annex I.B.

(d) The Appendix to these Clauses containing the Annexesreferred to therein forms an integral part of these Clauses.

Clause 2

Effect and invariability of the Clauses

(a) These Clauses set out appropriate safeguards, includingenforceable data subject rights and effective legal remedies, pursuant to Article 46(1) and Article 46(2)(c) of Regulation(EU) 2016/679 and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679, provided they are not modified, except to select the appropriate Module(s) or to add or update information in the Appendix. This does not prevent the Parties from including the standard contractual clauses laid down in these Clauses in a wider contract and/or to add other clauses or additional safeguards, provided that they do not contradict, directly or indirectly, these Clauses or prejudice the fundamental rights or freedoms of data subjects.

(b) These Clauses are without prejudice to obligations to whichthe data exporter is subject by virtue of Regulation (EU) 2016/679.

Clause 3

Third-party beneficiaries

(a) Data subjects may invoke and enforce these Clauses, asthird-party beneficiaries, against the data exporter and/or data importer, with the following exceptions:

(i) Clause 1, Clause 2, Clause 3,Clause 6, Clause 7;

(ii) Clause 8 – Clause 8.1(b),8.9(a), (c), (d) and (e);

(iii) Clause 9 – Clause 9(a), (c),(d) and (e);

(iv) Clause 12 – Clause 12(a), (d)and (f);

(v) Clause 13;

(vi) Clause 15.1(c), (d) and (e);

(vii) Clause 16(e);

(viii) Clause 18 – Clause 18(a) and(b).

(b) Paragraph (a) is without prejudice to rights of datasubjects under Regulation (EU) 2016/679.

Clause 4 

Interpretation 

(a) Where these Clauses use terms that are defined inRegulation (EU) 2016/679, those terms shall have the same meaning as in that Regulation. 

(b) These Clauses shall be read and interpreted in the light ofprovisions of Regulation (EU) 2016/679.

(c) These Clauses shall not be interpreted in a way thatconflicts with rights and obligations provided for in Regulation (EU) 2016/679.

Clause 5 

Hierarchy 

In the event of a contradiction between these Clauses and theprovisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail. 

Clause 6 

Description of the transfer(s) 

The details of the transfer(s), and in particular thecategories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B. 

Clause 7 – Not used 

SECTION II – OBLIGATIONS OF THE PARTIES 

Clause 8 

Data protection safeguards 

The data exporter warrants that it has used reasonable effortsto determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses. 

8.1 Instructions 

(a) The data importer shall process the personal data only ondocumented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract. 

(b) The data importer shall immediately inform the dataexporter if it is unable to follow those instructions. 

8.2 Purpose limitation

The data importer shall process the personal data only for thespecific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter. 

8.3 Transparency 

On request, the data exporter shall make a copy of theseClauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679. 

8.4 Accuracy 

If the data importer becomes aware that the personal data ithas received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data. 

8.5 Duration of processing and erasure or return of data 

Processing by the data importer shall only take place for theduration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a). 

8.6 Security of processing

(a) The data importer and, during transmission, also the dataexporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security. 

(b) The data importer shall grant access to the personal datato members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. 

(c) In the event of a personal data breach concerning personaldata processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.

(d) The data importer shall cooperate with and assist the dataexporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer. 

8.7 Sensitive data 

Where the transfer involves personal data revealing racial orethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B. 

8.8 Onward transfers 

The data importer shall only disclose the personal data to athird party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (4) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if: 

(i) the onward transfer is to acountry benefiting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer; 

(ii) the third party otherwiseensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question; 

(iii) the onward transfer isnecessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or 

(iv) the onward transfer isnecessary in order to protect the vital interests of the data subject or of another natural person. 

Any onward transfer is subject to compliance by the dataimporter with all the other safeguards under these Clauses, in particular purpose limitation. 

8.9 Documentation and compliance

(a) The data importer shall promptly and adequately deal withenquiries from the data exporter that relate to the processing under these Clauses. 

(b) The Parties shall be able to demonstrate compliance withthese Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter. 

(c) The data importer shall make available to the data exporterall information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer. 

(d) The data exporter may choose to conduct the audit by itselfor mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice. 

(e) The Parties shall make the information referred to inparagraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request. 

Clause 9 

Use of sub-processors 

(a) The data importer has the data exporter’s generalauthorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least 30 days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.

(b) Where the data importer engages a sub-processor to carryout specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (8) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses. 

(c) The data importer shall provide, at the data exporter’srequest, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy. 

(d) The data importer shall remain fully responsible to thedata exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract. 

(e) The data importer shall agree a third-party beneficiaryclause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data. 

Clause 10 

Data subject rights 

(a) The data importer shall promptly notify the data exporterof any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.

(b) The data importer shall assist the data exporter infulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required. 

(c) In fulfilling its obligations under paragraphs (a) and (b),the data importer shall comply with the instructions from the data exporter. 

Clause 11 

Redress 

(a) The data importer shall inform data subjects in atransparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject. 

(b) In case of a dispute between a data subject and one of theParties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them. 

(c) Where the data subject invokes a third-party beneficiaryright pursuant to Clause 3, the data importer shall accept the decision of the data subject to: 

(i) lodge a complaint with thesupervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13; 

(ii) refer the dispute to thecompetent courts within the meaning of Clause 18.

(d) The Parties accept that the data subject may be representedby a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679. 

(e) The data importer shall abide by a decision that is bindingunder the applicable EU or Member State law. 

(f) The data importer agrees that the choice made by the datasubject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws. 

Clause 12 

Liability 

(a) Each Party shall be liable to the other Party/ies for anydamages it causes the other Party/ies by any breach of these Clauses. 

(b) The data importer shall be liable to the data subject, andthe data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses. 

(c) Notwithstanding paragraph (b), the data exporter shall beliable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable. 

(d) The Parties agree that if the data exporter is held liableunder paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.

(e) Where more than one Party is responsible for any damagecaused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties. 

(f) The Parties agree that if one Party is held liable underparagraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage. 

(g) The data importer may not invoke the conduct of asub-processor to avoid its own liability.

Clause 13 

Supervision 

(a) Where the data exporter is not established in an EU MemberState, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679: The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority. 

Where the data exporter is not established in an EU MemberState, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679: The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority. 

(b) The data importer agrees to submit itself to thejurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.

SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES

Clause 14 

Local laws and practices affecting compliance with the Clauses 

(a) The Parties warrant that they have no reason to believethat the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses. 

(b) The Parties declare that in providing the warranty inparagraph (a), they have taken due account in particular of the following elements: 

(i) the specific circumstances ofthe transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred; 

(ii) the laws and practices of thethird country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (12); 

(iii) any relevant contractual,technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.

(c) The data importer warrants that, in carrying out theassessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses. 

(d) The Parties agree to document the assessment underparagraph (b) and make it available to the competent supervisory authority on request. 

(e) The data importer agrees to notify the data exporterpromptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a). 

(f) Following a notification pursuant to paragraph (e), or ifthe data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.

Clause 15 

Obligations of the data importer in case of access by public authorities

15.1 Notification

(a) The data importer agrees to notify the data exporter and,where possible, the data subject promptly (if necessary with the help of the data exporter) if it: 

(i) receives a legally bindingrequest from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or 

(ii) becomes aware of any directaccess by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer. 

(b) If the data importer is prohibited from notifying the dataexporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter. 

(c) Where permissible under the laws of the country ofdestination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.). 

(d) The data importer agrees to preserve the informationpursuant to paragraphs (a) to (c) for the duration of the contract and make it available to the competent supervisory authority on request. 

(e) Paragraphs (a) to (c) are without prejudice to theobligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.

15.2 Review of legality and data minimisation

(a) The data importer agrees to review the legality of therequest for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e). 

(b) The data importer agrees to document its legal assessmentand any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request. 

(c) The data importer agrees to provide the minimum amount ofinformation permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

SECTION IV – FINAL PROVISIONS

Clause 16 

Non-compliance with the Clauses and termination 

(a) The data importer shall promptly inform the data exporterif it is unable to comply with these Clauses, for whatever reason. 

(b) In the event that the data importer is in breach of theseClauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).

(c) The data exporter shall be entitled to terminate thecontract, insofar as it concerns the processing of personal data under these Clauses, where: 

(i) the data exporter has suspendedthe transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension; 

(ii) the data importer is insubstantial or persistent breach of these Clauses; or 

(iii) the data importer fails tocomply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses. 

In these cases, it shall inform the competent supervisoryauthority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. 

(d) Personal data that has been transferred prior to thetermination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law. 

(e) Either Party may revoke its agreement to be bound by theseClauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.

Clause 17 

Governing law

These Clauses shall be governed by the law of one of the EUMember States, provided such law allows for third-party beneficiary rights. The Parties agree that this shall be the law of Ireland (specify Member State). 

Clause 18 

Choice of forum and jurisdiction 

(a) Any dispute arising from these Clauses shall be resolved bythe courts of an EU Member State. 

(b) The Parties agree that those shall be the courts of Ireland(specify Member State). 

(c) A data subject may also bring legal proceedings against thedata exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence. 

(d) The Parties agree to submit themselves to the jurisdictionof such courts.

(1) Where the data exporter is a processor subject to Regulation (EU) 2016/679 acting on behalf of a Union institution or body as controller, reliance on these Clauses when engaging another processor (sub-processing) not subject to Regulation (EU) 2016/679 also ensures compliance with Article 29(4) of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39), to the extent these Clauses and the data protection obligations as set out in the contract or other legal act between the controller and the processor pursuant to Article 29(3) of Regulation (EU) 2018/1725 are aligned. This will in particular be the case where the controller and processor rely on the standard contractual clauses included in Decision 2021/915. 

(2) Not applicable 

(3) Not applicable 

(4) The Agreement on the European Economic Area (EEA Agreement) provides for the extension of the European Union’s internal market to the three EEA States Iceland, Liechtenstein and Norway. The Union data protection legislation, including Regulation (EU) 2016/679, is covered by the EEA Agreement and has been incorporated into Annex XI thereto. Therefore, any disclosure by the data importer to a third party located in the EEA does not qualify as an onward transfer for the purpose of these Clauses. 

(5) Not applicable 

(6) Not applicable 

(7) Not applicable

(8) This requirement may be satisfied by the sub-processor acceding to these Clauses under the appropriate Module, in accordance with Clause 7. 

(9) Not applicable 

(10) Not applicable 

(11) Not applicable 

(12) As regards the impact of such laws and practices on compliance with these Clauses, different elements may be considered as part of an overall assessment. Such elements may include relevant and documented practical experience with prior instances of requests for disclosure from public authorities, or the absence of such requests, covering a sufficiently representative time-frame. This refers in particular to internal records or other documentation, drawn up on a continuous basis in accordance with due diligence and certified at senior management level, provided that this information can be lawfully shared with third parties. Where this practical experience is relied upon to conclude that the data importer will not be prevented from complying with these Clauses, it needs to be supported by other relevant, objective elements, and it is for the Parties to consider carefully whether these elements together carry sufficient weight, in terms of their reliability and representativeness, to support this conclusion. In particular, the Parties have to take into account whether their practical experience is corroborated and not contradicted by publicly available or otherwise accessible, reliable information on the existence or absence of requests within the same sector and/or the application of the law in practice, such as case law and reports by independent oversight bodies.